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Official Opinion 98-11

Official Opinion 98-11

June 11, 1998

To:

Executive Secretary State Ethics Commission

Re:

Under O.C.G.A. ¿ 21-5-30.1(d), individuals who hold licenses issued by examining boards under the jurisdiction of the Secretary of State are permitted to make campaign contributions from their personal funds to the Secretary of State or a candidate for that office.

The State Ethics Commission has requested an official opinion on whether individuals who are licensed by the examining boards under the jurisdiction of the Secretary of State (and are, therefore, regulated entities under O.C.G.A. § 21-5-30.1(a)(5)) may nonetheless make campaign contributions from their personal funds to the Secretary of State or a candidate for that office under the provisions of O.C.G.A. § 21-5-30.1(d).

As you know, I have recently issued Op. Att’y Gen. 98-4 concluding that the examining boards connected to the Secretary of State are under the jurisdiction of that office for the purposes of O.C.G.A. § 21-5-30.1(a)(5). This Code Section defines the term “regulated entity” as:

any person who is required by law to be licensed by an elected executive officer or a board under the jurisdiction of an elected executive officer, any person who leases property owned by or for a state department, or any person who engages in a business or profession which is regulated by an elected executive officer or by a board under the jurisdiction of an elected executive officer.

Thus, individuals or other entities which hold professional or business licenses from any of the various examining boards under the Secretary of State would fit within the definition of “regulated entity” and ostensibly would be prohibited from making campaign contributions under O.C.G.A. § 21-5-30.1(b). (“No regulated entity . . . shall make a contribution to or on behalf of a person holding office as an elected executive officer regulating such entity . . . .”)

Nothing contained in this Code section shall be construed to prevent any person who may be employed by a regulated entity, including a person in whose name a license or lease is held, from voluntarily making a campaign contribution from that person’s personal funds to or on behalf of a person holding office as an elected executive officer regulating such entity or to or on behalf of a candidate for the office of an elected executive officer regulating such entity or to or on behalf of a campaign committee of any such candidate.

Under one possible interpretation of this statute, only individual licensees who are employed by another regulated entity may make such personal campaign contributions. This would mean that other licensees who are not so employed may not make such contributions, even though they may be similarly situated to their “employed” colleagues in every other respect. In my view, this interpretation results in inequities which were not intended by the General Assembly.

Such an interpretation would prevent not only self-employed licensees from making contributions, but also anomalously would prohibit licensees who are employed by non-regulated entities from making such personal contributions. The equal protection issues arising from such an interpretation are self-evident and no distinction appears to exist. See, e.g., Crim v. McWhorter, 242 Ga. 863 (1979). Moreover, since the activity of making campaign contributions is “speech” or political expression, any classifications which burden that First Amendment activity must be narrowly tailored to serve a compelling state interest. Gwinn v. State Ethics Comm’n, 262 Ga. 855 (1993). Since there does not appear to be a rational basis for drawing distinctions between employees of regulated entities, licensed employees of regulated entities, licensed individuals who are self-employed, and licensed individuals who are employed by a non-regulated entity, I must conclude that the General Assembly intended to treat all of these individuals similarly and permit them to make voluntary campaign contributions from their personal funds.

As you know, it is a cardinal rule of statutory construction that one must look diligently for the intent of the legislature and construe statutes in a manner to effectuate that intent, “keeping in view at all times the old law, the evil, and the remedy.” O.C.G.A. § 1-3-1(a); City of Roswell v. City of Atlanta, 261 Ga. 657 (1991). The “old law” relevant to O.C.G.A. § 21-5-30.1(d) was first enacted in 1989, and prohibited only campaign contributions to the Commissioner of Insurance from industrial loan licensees and insurers. 1989 Ga. Laws 784, 786. Subsection (d) of the predecessor statute provided as follows:

(d) Nothing contained in this Code section shall be construed to prevent any person who may be employed by an industrial loan licensee or insurer, including a person in whose name a license is held, from voluntarily making a campaign contribution from that person’s personal funds to or on behalf of a person holding office as Commissioner of Insurance or to or on behalf of a candidate for the office of Commissioner of Insurance or to or on behalf of a campaign committee of any such candidate. It shall be unlawful and a violation of this Code section for any insurer or industrial loan licensee or other person to require another by coercive action to make any such contribution.

Id. Thus, in the predecessor statute, individuals employed by industrial loan licensees or insurers, including those “in whose name a license is held,” could make voluntary contributions from their personal funds. This language survived in the current law.

It is my opinion that the use of the term “employed” encompasses not only those individuals working for a regulated entity as an employee (whether licensed or not), but also those licensed individuals who may be self-employed and, by virtue of their license, fall within the definition of “regulated entity.” The language “any person who may be employed by a regulated entity” is more specifically defined as including an individual in whose name a license is held. In effect, the statute presupposes that a licensee is “employed” by a regulated entity, whether the regulated entity has separate existence or is the licensee himself. “Where a particular expression in one part of a statute is not so extensive or large in its import as other expressions in the same statute, it must yield to the larger and more extensive expression, where the latter embodies the real intent of the legislature . . . .” Board of Trustees of the Policemen’s Pension Fund of Atlanta v. Christy, 246 Ga. 553, 555 (1980) (quoting Williams v. Bear’s Den, Inc., 214 Ga. 240, 242 (1958)). In my opinion, the language of the statute which defines “any person” as including an individual in whose name a license is held is of greater weight and import than the language relating to the employment status of the licensee.

In conclusion, it is my official opinion that individuals who hold licenses issued by examining boards under the jurisdiction of the Secretary of State may lawfully make campaign contributions to a candidate for that office from their personal funds.